Immigration Reform and Immigrant Responsibility Act
In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA), which amended some of the IRCA provisions. IIRAIRA requires a showing of intentional discrimination in a case against an employer for alleged document abuse (asking for more or different documents than required to demonstrate work authorization). IIRAIRA authorizes the creation of pilot programs to strengthen and improve the employment verification process.
The Good Faith Exception. IIRAIRA also amended the Immigration and Nationality Act (INA) to provide for an affirmative defense against a charge of knowingly employing an unauthorized worker if the employer makes a good faith attempt to comply with the employment verification requirements. The amendment applies to failures occurring on or after September 30, 1996.
Under the good faith defense, the employer is considered to have complied with the verification requirements of the INA notwithstanding technical or procedural errors in the completion of the I-9 form. The government may challenge this defense by showing that the documents presented did not appear genuine, or that the verification was pretextual, among other methods.
To benefit from this defense, the employer must correct the I-9 errors within 10 business days of the notice of failure to comply. The defense is also not available if the employer is found to have engaged in a pattern or practice of violations of immigration laws.
Penalties Against Employers. In fiscal year 2007, ICE obtained more than $30 million dollars in criminal fines, restitution awards, and civil judgments in worksite enforcement cases. ICE arrested 863 people in criminal cases, including 90 business owners, managers, and supervisors, and made more than 4,000 administrative arrests, a tenfold increase over 2002 figures.
As of August 2008, ICE had made more than 1,022 criminal arrests tied to worksite enforcement investigations. Of the 1,022 individuals arrested, about 116 are owners, managers, supervisors, and human resource employees facing charges including harboring or knowingly hiring illegal aliens. The other criminal arrests include undocumented workers criminally charged with aggravated identity theft and Social Security fraud. ICE has also made more than 3,900 administrative arrests for immigration violations during worksite enforcement operations, and collected significant administrative fines utilizing the notice of intent to fine procedure pursuant to IRCA.
ICE cases against employers are based on information developed over time and obtained from sources such as audits, anonymous calls to ICE, wiretaps, referrals from local police, informants, and others. ICE is also using information contained in the I-9 forms against the employer to establish the required knowledge for certain felony charges.
ICE is charging employers with violations that carry criminal penalties and provide for asset forfeiture. Managers and corporate officers are being charged with harboring illegal aliens and money laundering. Harboring illegal aliens is a felony with a potential 10-year prison sentence. Money laundering is a felony with a potential 20-year prison sentence. Undocumented employees are commonly charged with possession of fraudulent documents, identity theft, Social Security fraud, and/or re-entry after removal.
Constructive Knowledge. The employer’s knowledge that a worker is unauthorized may be actual or constructive. Constructive knowledge is defined as knowledge which may fairly be inferred through notice of certain facts and circumstances that would lead a person, through the exercise of reasonable care, to know about a certain condition.
The regulations provide the following examples where the employer may, depending on the totality of the circumstances, be found to have constructive knowledge: failure to complete or improper completion of the I-9; having information which would indicate that an employee might not be authorized for employment; and reckless and wanton disregard for the legal consequences of allowing an individual to introduce an unauthorized worker in the workforce.
The courts have found constructive knowledge in various circumstances including when the employer received information from Legacy INS that some employees were suspected of having presented a false document to show work authorization and failed to investigate the employee’s status; failed to complete Form I-9 coupled with evidence that the employer should have known or consciously avoided acquiring knowledge of the employee’s unauthorized status; failed to re-verify the work authorization of an employee with time-limited work authorization and continued to employ worker beyond the authorized period of employment; recklessly delegated the duty of completing the I-9 forms; and verifying employment authorization to a person who was not trained in the I-9 process and could not understand the directions on the form.
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